Not Credible
If two U.S. Senators want to be taken seriously when discussing the general topic of corruption and specifically the Foreign Corrupt Practices Act, they need to get a few basic things right.
Such as the year in which the law they are talking about was passed.
However, in this piece Senators Roger Wicker and Ben Cardin states: “The FCPA, passed in 1973, makes it illegal for a U.S. business to pay a bribe abroad and collects enormous fines and penalties every year—often in the billions of dollars.”
For the record, the FCPA was passed in 1977.
Perplexed
This FCPA Blog post is titled “In France, Bribery Isn’t Needed to Violate the Anti-Bribery Law.”
The title left me perplexed because in the U.S. bribery also isn’t need to violate the FCPA. Indeed, most technical FCPA enforcement actions (that is enforcement actions involving the FCPA’s books and records and internal controls provisions) have nothing to do with bribery (see here and here for examples).
The FCPA blog further asserts that in the U.S. “failure to adopt an anti-bribery compliance program is not, in and of itself, illegal.” This assertion misses the point that an issuer’s failure to have certain internal controls is, in and of itself, illegal.
Granted the FCPA’s internal controls are not specific to anti-bribery compliance, but the SEC (the main proponent of the provisions during the FCPA’s enactment) as well as Congress in enacting the provisions certainly intended for them to operate in such a fashion.
As stated in a Senate Report:
“The accounting standards … are intended to operate in tandem with the criminalization provisions of the bill to deter corporate bribery … [and express] a public policy which encompasses a unified approach to the matter of corporate bribery.”
Senator Proxmire (a leader in Congress on what would become the FCPA) viewed the books and records and internal control provisions as “strengthen[ing] the Commission’s ability to combat payment of bribes by American corporations overseas.”
Another Senate Report further stated:
“The Committee expects that the requirement to maintain accurate books[,] records, and management controls and the prohibition against falsifying such records or deceiving an auditor, will go a long way towards eliminating improper payments, which almost by definition-require concealment. Taken in combination with the criminal prohibition against bribery, the accounting provisions should be adequate to the task of deterring corrupt payments even where transgressors take steps to evade the intent of the law.”
Facts Matter
Speaking of the FCPA Blog, does this site even care about facts?
This FCPA Blog post asserts that “by this time in 2020” “Airbus paid $2 billion to U.S. authorities as part of their global settlement.”
This is a false statement.
As highlighted in this post, Airbus paid approximately $294 million to U.S. authorities as part of their global settlement amount.
At the DOJ
The DOJ recently announced:
“An Ecuadorian and Italian national was sentenced today to 51 months in prison for his role in a scheme to launder bribes paid to him in exchange for helping three U.K. reinsurance companies obtain and retain reinsurance business from Ecuador’s public surety company.
Juan Ribas Domenech, 52, pleaded guilty to one count of conspiracy to commit money laundering on Sept. 16, 2020. According to court documents, between 2013 and 2017, Ribas was the chairman of Seguros Sucre, Ecuador’s state-owned and -controlled surety company and an advisor to the then-president of Ecuador. In those capacities, Ribas had authority over the awarding of Seguros Sucre business. During that time, Ribas accepted approximately $5,036,465 in bribes from his co-conspirators in exchange for using his official position to allow three U.K.-based reinsurance brokers to obtain and retain contracts with Seguros Sucre. These bribe payments were paid through various intermediaries, including two reinsurance introducer companies. A portion of the bribes were laundered through the United States.”
The DOJ also recently announced:
“A dual U.S.-Venezuelan citizen and former official at Citgo Petroleum Corporation, a Houston-based subsidiary of Venezuela’s state-owned and state-controlled energy company Petróleos de Venezuela S.A. (PDVSA), pleaded guilty Monday in connection with his role in laundering millions of dollars in bribes and corruptly providing business advantages to multiple individuals who obtained contracts with Citgo and PDVSA.
According to court documents, between approximately 2013 and 2019, Jose Luis De Jongh Atencio (De Jongh), 48, a former procurement officer and manager in Citgo’s Special Projects Group, accepted more than $7 million in bribe payments from businessmen including Jose Manuel Gonzalez Testino (Gonzalez), a dual U.S.-Venezuelan citizen, and Tulio Anibal Farias Perez (Farias), a Venezuelan national and Houston resident, and others in exchange for assisting the businessmen and related companies in procuring contracts with Citgo, and providing them with other business advantages.
De Jongh admitted to directing bribe payments from Gonzalez, Farias, and others into bank accounts in the names of shell companies that he controlled in Panama and Switzerland. In some instances, he also directed the creation of fake invoices to justify the payments. De Jongh laundered the bribe proceeds through U.S. and international bank accounts and used the funds to purchase real property located in the Houston area. In addition to monetary payments, De Jongh also received bribes in the form of gifts and other things of value from Gonzalez, Farias, and others including tickets to a 2014 World Series Game, Super Bowl XLIX in 2015, and a U2 concert. Gonzalez and Farias also entered guilty pleas in connection with the case.
[…]
De Jongh pleaded guilty to one count of conspiracy to commit money laundering. He is scheduled to be sentenced by U.S. District Judge Gray H. Miller on Aug. 19, and faces a maximum penalty of 20 years in prison. Judge Miller will determine any sentence after considering the U.S. Sentencing Guidelines and other statutory factors. In addition, as part of his plea, De Jongh also agreed to forfeit over $3 million seized from his bank accounts and 15 properties that he purchased with his corrupt proceeds.”
The DOJ’s release is titled “Former Venezuelan Official Pleads Guilty in Connection with International Bribery and Money Laundering Scheme.”
However, as highlighted in this post, De Jongh’s status as a “foreign official” was disputed.
